Notre Dame Law School
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1-1-1995
War Crimes and Other Human Rights Abuses in
the Former Yugoslavia
Robert T. Mounts
Jeffrey L. Bleich
Doug Cassell
Notre Dame Law School, [email protected]
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Recommended Citation
Mounts, Robert T.; Bleich, Jeffrey L.; and Cassell, Doug, "War Crimes and Other Human Rights Abuses in the Former Yugoslavia"
(1995). Scholarly Works. Paper 305.
http://scholarship.law.nd.edu/law_faculty_scholarship/305
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PANEL II: WAR CRIMES AND
OTHER HUMAN RIGHTS ABUSES IN
THE FORMER YUGOSLAVIA*
T. MouNTs, USAF (RETIRED)**
DOUGLASS W. CASSEL, JR.***
JEFFREY L. BLEICHt
LIEUTENANT COLONEL ROBERT
I. A MILITARY LAWYER'S PERSPECTIVE: LEGAL PROTECTION OF
CIVILIANS AN) U.N. PEACEKEEPERS IN THE FORMER YUGOSLAVIA
MR. MOUNTS: The Judge Advocate General ("JAG") plays a very
active role in "Operations Law for the Commander." This role is based
* This is the edited text of a panel discussion presented at the Eleventh Annual
Whittier International Law Symposium on July 9, 1994.
** Robert T. Mounts is now a civilian attorney practicing in Long Beach, California,
with emphasis on cross-cultural and international commercial dispute resolution as a Certified
Panelist of the International Centers for Arbitration (ICA), an affiliate of the Judicial Arbitration and Mediation Service/Endispute, (J.A.M.S./Endispute), Inc.
*** Professor Cassel is Executive Director of the International Human Rights Law Institute of DePaul University College of Law, which he helped found in 1990. He teaches and
writes on international hum rights law and directs the Institute's research, training, advocacy
and technical assistance programs. The DePaul Institute is the principle center responsible for
documentation of war crimes on behalf of the United Nations Commission of Experts to
Investigate Violations of Humanitarian Law. Professor Cassel is a 1972 honors graduate of
Harvard Law School, and was Managing Editor of the Harvard Civil Rights Civil Liberties
Law Review.
t Mr. Bleich is an attorney with the law firm of Munger, Tolles & Olson in San
Francisco, and Adjunct Professor of Law at Boalt Hall School of Law, University of California at Berkeley. Legal Assistant to the Hon. Howard M. Holtzmann, U.S.-Iran Claim Tribunal, The Hague, (1991-92). Special Rapporteur to the Expert Commission for the Permanent
Court of Arbitration (1991-92). Law Clerk to Hon. William H. Rehnquist, Chief Justice of
the United States (1990-91). Law Clerk to Hon. Abner J. Mikva, Chief Judge of the United
States Court of Appeals of the District of Columbia Circuit (1989-90). B.A. Amherst College
(1983); M.P.P. Harvard University (1986); J.D. University of California at Berkeley (1989);
The Hague Academy (1992).
WHITTIER LAW REVIEW
[Vol. 16
on the Protocol I requirement of Article 87 of the Protocol Additional
to the Geneva Conventions of 1949.' Protocol I requires commanders
to train military personnel concerning their responsibilities under the
Law of Armed Conflict, previously called the "Law of War," but currently referred to as "LOAC." 2 Commanders are also required to suppress and report breaches of the Geneva Conventions and the Protocol,
in order to prevent violations and to discipline violators. Thus, the
Protocol is tied up with military discipline and with international human rights law. Furthermore, there is an affirmative obligation to train
military personnel.
Protocol I came into being around 1977. Since the early 1980s,
the United States's military has very vigorously been training its forces.
Unfortunately, the United States has been almost alone in its efforts.
Between 1982 and 1985, the United States had regular exercises with
its NATO counterparts, such as the Belgians and the Dutch. When the
unit would test Law of Armed Conflict awareness, the Belgians and the
Dutch would just laugh. They said, "You are six minutes away from
the nearest missile. There is going to be general war here. It is going to
be 'no holds barred'. There are no rules. There is no need for rules."
They kind of scoffed at the "LOAC." This reaction was surprising to
me because of their European background, which I presumed to be
more sophisticated and progressive than it was.
South Korea, where I served from 1989-1993, is in the embryonic
stages of trying to teach the Law of Armed Conflict. Their JAG's do
not have nearly the same degree of influence upon their commanders
that JAG's in the United States have. There are not nearly as many
lawyers in Korea as in this country, but Korea is our ally, and they
have the overwhelming number of the ground forces that would be
committed if the United States had to go to war in Korea. So the problem for the United States is: How does the LOAC ensure compliance
on its own side by allied forces?
The majority of the military's recent combat experience came
from the war in Vietnam. In Vietnam, some of the problems were
blamed on the politicians and the lawyers. Commanders and soldiers
blurred the distinction between the two. They did not really see the
difference between where the law ends and where the United States
1. Protocol Additional to the Geneva Conventions of August 12, 1949, and Relating to
the Protection of Victims of International Armed Conflicts, opened for signature Dec. 12,
1977, art. 87, 1125 U.N.T.S. 1 [hereinafter Protocol 1].
2. Id.
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PANEL II: WAR CRIMES
had made a political decision to refrain from doing something, otherwise permitted under the LOAC. Fortunately, General Norman
Schwarzkopf, who commanded the Desert Storm Operation, was in
Vietnam twice and was able to derive several lessons from Vietnam.
General Schwarzkopf knew that the JAG's role was not to create obstacles, but to find legal ways to achieve the commander's goals, even
when those goals were to blow things up and kill people.
In 1974, there was a Department of Defense ("DOD") directive
which was a result of the massacre at Mai Lai. This directive addressed
the United States's need to train its forces, particularly those who
might become prisoners of war. In addition, in 1983, there was a Joint
Chief of Staff memorandum which clearly expanded and defined the
area of Operations Law. A very detailed article published in the ABA
Journal in 1991, by Steven Keeva, entitled Lawyers in the War Room,
details how far the military has come with this whole area.3
During the Persian Gulf War, with the aid of "smart weapons," the
U.S. military was very careful in their targeting decisions. Lawyers
were closely involved with the commander in his decisions. My former
wing commander in Germany once said: "When we go to war, I want
you to get out of my way." However, this attitude has changed dramatically.
A side-bar by Mr. Keeva reads: "[Tiaking a humane approach-besides being its own reward-makes good military and political sense." 4 During the Persian Gulf War, we were not only able to
confine collateral damages and losses to our own forces and protect
prisoners of war, but we were also able to take the moral high ground
every day on CNN or in the news. Since the coalition prisoners of wars
("POWs") were paraded on television by Saddam Hussein, this, contrasted with the coalition's apparently humane treatment of over a
hundred thousand Iraqi detainees after the war, and combined with the
analysis of the majority of U.S. targeting decisions, allowed the United
States to take the high ground. Fundamentally, the JAG convinced the
leadership that it did not want to sow the seeds of future wars, and that
compliance with LOAC was in our own self-interest. This was the
hardest thing to do, that is, to train the operators and the pilots in the
belief that the Law of Armed Conflict had some relevance to their
operations. Previously, the operators and pilots scoffed at it.
3.
4.
Steven Keeva, Lawyers in the War Room, 77 A.B.A.J. 52 (Dec. 1991).
Id. at 55.
WHITTIER LAW REVIEW
[Vol. 16
A POW I know who had been in "Ha Noi Hilton" for six years, a
well-known detention facility for American POWs, returned, attended
law school, and became a JAG. He was able to enumerate beautiful
examples of why LOAC compliance might be in the nation's self-interest. For example, if a pilot is downed in enemy territory and he falls
into a clearing surrounded by an enemy patrol, and he puts up his
hands in surrender or per military policy waves a white flag, and, as
the enemy lets down its guard, he reaches behind his back, takes out
his gun and starts firing it, what do you suppose will happen to the
next pilot that falls out of the sky into a clearing in enemy territory? It
is on this basis that the JAG has tried to train the soldiers.
A. BASIC LAW FOR PROTECTION OF CIVILIANS
As to the basic law for protection of civilians, first, there is the
Geneva Convention of 1949.' It was rather limited in scope. It applied
to declared wars and other armed conflicts involving the "High Contracting Parties" who were participants to the convention, and to all
cases of partial or total occupation of the territory of such parties. It
also provided limited protection for armed conflicts not of an international character occurring, again, in the territory of a High Contracting
Party, such as a civil war. It required humane treatment of persons
taking no active role in the hostilities. It outlawed: (1) all types of
violence to their persons; (2) hostage systems;. (3) humiliating or degrading treatment; and (4) summary punishment and executions. In the
movie "Schindler's List,"6 the young engineer female prisoner who
argued with the commander about the structural sufficiency of the
foundation she was asked to build was shot summarily. That is the kind
of thing that the Geneva Convention protects against-summary executions.
Article 4 of the Geneva Convention reads: "Nationals of a state
not bound by the Convention are not protected by it." 7 To my knowledge, Serbia, Croatia, and Bosnia are not parties to this convention.
However, Part II provides some protection on a broader basis with a
5. Geneva Convention Relative to the Protection of Civilian Persons in Time of War,
Aug. 12, 1949, 6 U.S.T. 3516, T.I.A.S. No. 3365, 75 U.N.T.S. 287 [hereinafter Geneva
Convention).
6. ScluLw.S Lsr (Universal 1993).
7. Geneva Convention, supra note 5, 6 U.S.T. at 3520, T.I.A.S. No. 3365, Part I, Art.
1995]
PANEL II: WAR CRIMES
wider application for the general population against the consequences
of war, primarily treatment accorded persons in occupied territories.'
B. PROTOCOL I
Then, in 1977, came Protocol .9 Protocol I outlines the basic rule
that must be taught to the military commanders-the basic rule being:
parties to a conflict must distinguish between the civilian population
and combatants, between civilian objects and military objectives, and
direct military operations only against military objectives. Contrast this
with what the United States did in Desert Storm with the destruction of
Sarajevo, when military forces targeted a civilian population, encircled
them, and bombarded them week after week, month after month. Protocol I says: "Civilians shall not be the object of attack."' The protocol
requires civilians to be protected, at least by the law, from violence and
threats of violence primarily designed to spread terror. It forbids indiscriminate attacks which are not directed at a legitimate military target.
For example, during World War II, in the back of a church in
Saltzburg, there was a Nazi communication station. The church was a
military target, and a national treasure, but, of course, also of religious
significance. The church was a military target because it was being
used as a cover for a military purpose.
Protocol I requires commanders to do certain things to prevent
violations of it." It also requires commanders to take feasible precautions to avoid excessive military operations in relation to the anticipated concrete and direct military advantage.
C. PROTOCOL II
Protocol II supplements Protocol 1.12 It develops and implements
the Article 3 of the Geneva Conventions of 1949, which only provided
some basic requirements for humane treatment. But the Protocol is not
to be used as a basis for intervention in civil wars. It requires funda-
8.
Geneva Conventions, supra note 5, 6 U.S.T. at 3526-36, T.I.A.S. No. 3365, Part II,
Art. 14.
9. See generally Protocol 1, supra note 1.
10. See generally Protocol I, supra note 1.
11. Id.
12. Protocol II Additional to the Geneva Conventions of Aug. 12, 1949, and Relating to
the Protection of Victims of Non-International Armed Conflicts, Dec. 7, 1978, 1125 U.N.T.S.
609.
WHITrlER LAW REVIEW
[Vol. 16
mental guarantees of humane treatment for noncombatants-respect for
their person, honor, convictions, and religious preferences." It seeks
to protect civilians from being the object of attack, to preserve the
civilian objects necessary for survival, and to prevent forced displacement.' 4 Civilian objects include those things that are indispensable to the survival of the civilian population, such as water supply,
crops, food and so forth.
Neither Protocol I nor Protocol II have yet been ratified by the
United States. Protocol I is being considered for ratification by the U.S.
Senate. The DOD, however, is still in the process of studying Protocol
II. As mentioned previously, the United States has implemented Protocol I very vigorously in its military since the late 1970s.
D. NUREMBERG PRECEDENT
The Nuremberg Trials 5 are considered to be historical precedent
for the Bosnia War Crimes Tribunal. The crimes listed in the Draft
Statute for the Bosnia War Crimes Tribunal are: (1) crimes against
peace; (2) crimes against humanity; and (3) punishment of the broad
criminal effort committed in an execution of an aggressive war which
was devised and executed with ruthless disregard for the very foundation of law and morality, including violations of the Law of Armed
Conflict and the persecution of minorities.
The traditional war crimes include murder, ill-treatment of prisoners of war and civilians in occupied areas, pillage of public and private
property, deportation of citizens to slave labor, and persecution of the
"Jews" and other ethnic minorities. The agreements establishing these
war crimes were not ratified by the former Yugoslavia, but there is a
"fix" for that, as we shall see.
13. Id.
14. Id.
15. Agreement for the Prosecution and Punishment of the Major War Criminals of the
European Axis Powers and Charter of the International Military Tribunal, Aug. 8, 1945, 59
Stat. 1544, 82 U.N.T.S. 284.
1995]
PANEL II: WAR CRIMES
E. GENOCIDE CONVENTION
The Genocide Convention 6 is an example of how public international law has slowly expanded to try to protect individuals from internal oppression by their own governments. Sovereignty, however, has
been the traditional legal obstacle. In the past, sovereignty was a basic
tenant of international law. Yet sovereignty has also stood in the way
of international efforts to do anything credible about civil wars, about
the things that happened with the Khmer Rouge or what is happening
now in Rwanda. There are still problems with jurisdiction, structure,
due process, and enforcement. Against this backdrop, there is an overwhelming humane imperative which people are repeating more often:
we must be able to "stop the killing."
F. U.N. SECURITY COUNCIL RESOLUTION 827
In 1993, the U.N. Security Council acted in response to the situation in Bosnia; the war in Bosnia had been ongoing for some time. The
Security Council finally passed U.N. Security Council Resolution
827. 7 In addition, a Draft War Crimes Statute was recommended to
the Security Council by the Secretary-General.
G. DRAFT WAR CRIMES STATUTE
Commentary explaining the Draft Statute describes how one would
set up a War Crimes Tribunal after a war. The Tribunal would be set
up by having the belligerent states agree to it by treaty but also agree
to enforce it.' 8 In recent years, as the war in Bosnia progressed, the
Security Council began to ask whether it should have the General Assembly get involved in this matter and how cumbersome that involvement might become. Finally, the United Nations decided it must act
now and that the Security Council provided the proper mechanism to
16. Convention on the Prevention and Punishment of the Crime of Genocide, Dec. 9,
1948, 78 U.N.T.S. 277 (entered into force Jan. 12, 1951).
17. United Nations: Secretary-General's Report on Aspects of Establishing an International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia, May 3,
1993, U.N., 32 I.L.M. 1159 (1993) [hereinafter U.N. Security Council Resolution 8271.
18. Id. at 1167.
WHITTIER LAW REVIEW
[Vol. 16
respond. The Security Council is able to do this under its enforcement
powers in Chapter VII of the U.N. Charter. Under the Charter, such a
decision to establish a War Crimes Tribunal would constitute a measure
to maintain or restore international peace and security, following the
requisite determination of the existence of a threat and breach of the
peace or active aggression. It would be more expeditious-immediately
effective on all states-regardless whether they were one of the High
Contracting Parties to Protocol I, Protocol II, the Geneva Convention,
or anything else.
In this particular case, the Security Council would be establishing,
as an enforcement measure under Chapter VII, a subsidiary organ of a
judicial nature within the terms of Article 29 of the Charter. This is a
very important step; it solves the question of jurisdiction over the parties.
H.
SUBJECT MATTER JURISDICTION
There exists the concept of grave breaches of the Geneva Conventions concerning subject-matter jurisdiction. 9 Grave breaches include:
(1) willful killing; (2) torture or inhumane treatment; (3) willfully causing great suffering or serious injury; (4) unlawful deportation; (5) taking civilizations as hostages; and (6) violations of the Laws of War.
The Nuremberg precedent is very important because the grave
breaches and violations of laws or customs of wars began with
Nuremberg. What the United Nations is trying to do now is apply the
rules of international law which are part of the customary international
law, as an international entity, so that the problem of adherence by
individual states does not arise.2"
There are also the matters of genocide and crimes against humanity. Crimes against humanity apply whether the violation is international
or internal in character. The International Court of Justice decision in
Nicaragua v. United States stands for this principle.2
All of the signatories do not agree to all of this, but a clear law
has been established. Someone once stated that it is western legal standards which have been adopted and which are going to be enforced by
19. Id. at 1170, Art. I.
20. Id.
21. Id. at 1170 n.9, citing Case Concerning Military and Paramilitary Activities in and
Against Nicaragua (Nicaragua v. United States of America), Judgement of 27 June 1986,
I.C.J. Reports 1986, p. 114.
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PANEL II: WAR CRIMES
the Security Council. The law will apply to civil wars and internal
conflicts as well as international ones. This is a very radical and dramatic step in the law. The law may still be ponderous and slow in
application, but we have come a long way since we had to deal with
the obstacle of sovereignty.
I.
PERSONAL JURISDICTION
In relation to individual criminal responsibility and personal jurisdiction, the Draft Statute states that individuals are personally responsible. Also, responsibility lies with any person who planned, instigated,
ordered, committed or otherwise aided and abetted in one of the four
major categories. This is where the "Superior Orders Defense" comes
into play. One of the concerns of the U.S. government is the failure to
recognize the Superior Orders Defense. The fact that an individual is
ordered to commit a crime is no defense under the Draft Statute,22 but
it may be considered in mitigation.
Command responsibility is established for any superior who knew
or had reason to know that his subordinate was about to commit war
crimes and then failed to take the necessary and reasonable measures to
prevent such acts or to punish the perpetrators. There is no immunity
for the heads of state or for the others in government who are acting in
their official capacity. Command responsibility is not a defense and it
is not considered in mitigation.
J. TEMPORAL JURISDICTION
The issue of temporal jurisdiction is interesting. The Draft Statute
says temporal jurisdiction extends back to January 1, 1991.23 This was
done deliberately and arbitrarily in order not to express any judgment
concerning whether the conflict within the former Yugoslavia is international or internal in scope.
K. SUPERIOR ORDERS DEFENSE
As previously indicated, the U.S. governments' concern is with the
"Superior Orders Defense. ' 24 Ambassador Madeleine Albright articu22. U.N. Security Council Resolution 827, supra note 21, at 1176.
23. Id.
24'. The abrogation of the Superior Orders Defense was originally proposed by Mr.
WHITTIER LAW REVIEW
[Vol. 16
lated the United States's position by stating that a defense should arise
when the accused was: (1) acting pursuant to orders where he or she
did not know the orders were unlawful; and (2) a person of ordinary
sense and understanding would not have known the orders to be unlawful. In the view of the United States, this preserves the delicate balance
between discipline-the idea that somebody must react instantaneously
during war-time-and individual criminal responsibility. However, it is
only a mitigating factor in the Draft Statute.
Furthermore, a recent report in the Los Angeles Times concerning
the U.N. Commission's investigation of war crimes in Bosnia, noted
that the command and control structure in Bosnia was so loose that
unlawful orders could have been disobeyed without risk to the individual, and therefore, that a real moral choice existed.25 Thus, this question is still being debated.
L. RULES OF PROCEDURE
Another concern of the United States is the absence of any rules
of procedure or rules of evidence. The court itself was authorized to
adopt such rules. In order to develop these rules, one must resort to the
Nuremberg Trials, military law and to the Uniform Code of Military
Justice ("UCMJ").26 The Joint Chiefs of Staff ("JCS"), the legal advisor, has submitted draft rules of procedure.
The key objective of the rules is to have a process which is fair
and one which the United States would be willing to subject its own
soldiers to should we be involved in the conflict. Therefore, the United
States has introduced some ideas of American justice which are based
on the UCMJ.27 Many suggestions have been contributed, most of
which have been accepted, including the standard of proof, which is
"beyond a reasonable doubt," and the idea of the standard of relevancy
in terms of what evidence can be admitted. The idea of plea-bargaining, in order to get at the big fish, has been rejected. There are some
standards for the protection of national security information and secrets
Morozov of the U.S.S.R; U.N. ESCOR Ad Hoc Comm., 6th Sess., 18th mtg., U.N. Doc.
E/AC.25/SR.18 (1948).
25. Stanley Meisler, U.N. Panel Finds Evidence of Serb War Crimes, L.A. TiMEs, June
2, 1994, at A4.
26. The Uniform Code of Military Justice consists of 145 articles, codified at 10 U.S.C.
§§ 801-940 (1988 & Supp. 1994). (The U.S. military now uses a modified version of the
Federal Rules of Evidence).
27. Id.
1995]
PANEL II: WAR CRIMES
which have also not been accepted. Some of these issues are still in
progress.
Another key problem is the listing of crimes in the statute. The
Draft Statute has listed some vague areas of what constitute the crimes
within the jurisdiction of the Tribunal; but in the U.S. system, there
also exists a list of elements for each offense which must be proven
beyond a reasonable doubt in order to convict. Currently, international
law merely lists crimes; it does not define the elements a prosecutor
must prove to sustain a conviction.
Also in the Statute are provisions for fair and expeditious trials,
but the accused defendants must be physically present. Thus, the first
trial cannot be conducted until the political and military situation has
stabilized enough so that the people may attend the trials. Then, the
trial will be held in the Netherlands. There are no "in absentia" trials.
There are public hearings. The rights of the accused are fairly standard
and well set out. Defendants have a right to counsel, are considered
innocent until proven guilty, and have a right against self-incrimination.
There are protections for victims and witnesses.
At times, various witnesses are reluctant to testify. Therefore, there
is a provision for in camera proceedings. The witness goes into a
closed session with the judge. This method provides a situation where
the identity of the witnesses can be protected.
Under the penalties section, there is only imprisonment, which will
be served in those countries that are willing to accept prisoners outside
Yugoslavia. There is no death penalty, which is consistent with the
official Amnesty International position on the death penalty, despite the
heinous nature of some of the crimes apparently committed.
The budget for the first year was almost $31.2 million. The first
appointed prosecutor quit almost immediately. Today, a new prosecutor
has been appointed, and a staff of about 250 has been retained.
M. DRAFT CoNvENTION ON THE PROTECTION OF UNITED NATIONS
PERSONNEL
The Draft Convention on the Protection of United Nations Personnel28 is a program to protect various U.N. personnel in such countries
as Somalia, Northern Iraq, or the former Yugoslavia. The protection
28. Draft Convention on the Protection of United Nations Personnel (draft text provided
by Ukraine and New Zealand at U.N. General Assembly, Sixth Committee, Dec. 1993).
WHITTIER LAW REVIEW
[Vol. 16
provided thus far has been insufficient. Therefore, the United Nations
has proposed a Draft Convention on the Protection of U.N. Personnel.
The common approach of the initial drafts is to establish that attacks on
U.N. personnel are an international crime.
The U.S. government considers this program to be too broad. It
covers people who are serving in countries with non-governmental
organizations. The U.S. government would like to restrict the forces
protected in order to avoid diluting this protection and preserve it for
those people who really need it. Right now, the only thing protecting
U.N. personnel is Article 3 of the 1949 Geneva Conventions, which is
the basic protection of humane treatment for all persons.29 If the Draft
Convention is adopted, the U.N. peacekeepers will get what amounts to
diplomatic immunity.
N. CONCLUSION
In conclusion, the JAGs have been a positive influence on the
Law of Armed Conflict. Furthermore, JAGs have come a long way in
the last 15 years. The law protects civilians, but there is still a great
need for training, particularly in other countries and other military
organizations. Broader acceptance is needed in order to have any hope
of being effective. The long-term effect of all this will be slight without swift enforcement and international condemnation. The Security
Council's efforts have been positive. But clearer direction and proper
due process are needed to flesh this out with standards and with staff.
There is a quote from Zlata's Diary dated Monday, June 29, 1992:
Dear Mimmy,
BOREDOM!!! SHOOTING!!! SHELLING!!! PEOPLE BEING
KILLED!!! DESPAIR!!! HUNGER!!! MISERY!!! FEAR!!!
That's my life! The life of an innocent 11-year-old schoolgirl!!!
A schoolgirl without a school, without the fun and excitement of
school. A child without games, without friends, without the sun,
without birds, without nature, without fruit, without chocolate or
sweets, with just a little powdered milk. In short, a child without a
childhood. A wartime child. I now realize that I am really living
through a war, I am witnessing an ugly, disgusting war. I and thousands of other children in this town that is being destroyed, that is
crying, weeping, seeking help, but getting none. God, will this ever
29.
Geneva Conventions, supra note 5, Art. 3.
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PANEL II: WAR CRIMES
stop, will I ever be a schoolgirl again, will I ever enjoy my childhood again? . 30
Furthermore, it reads: "Sunday, July 26, 1992. The Security Council is
hopeless. It makes no reasonable decisions at all. Your Zlata."', In
1993 we made a start. What we have to do now is get on with it.
II. THE UNITED NATION'S COMMISSION TO INVESTIGATE WAR
CRIMES IN THE FORMER YUGOSLAVIA
MR. CASSEL: Today, the world is witnessing in*Europe the first
genocide in half a century. Unfortunately, everyone has failed to date
to do much about it. Everyone has seen it so often in the papers and on
the television in the last two years, that it sounds almost banal at this
point to repeat it. History, sociology and the law can get pretty dry.
One of the things that the report of the U.N. Commission of Experts on
Violations of International Humanitarian Law in the Former Yugoslavia 32 attempted to do was to give all this a human face. This was done
because the human face-on all sides of the conflict-is a face dripping with tears.
The Commission stated in its report,33 "The crimes committed
have been particularly brutal and ferocious in their execution."' The
report further stated, "The commission is shocked by the breadth and
manner of the criminal conduct."35 One paragraph from the
Commission's report may help clarify, in a humane manner, what has
been happening in the former Yugoslavia. It states:
Rape is present in the camps. Captors have killed women who
resisted being raped, often in front of other prisoners. Rapes were
also committed in the presence of other prisoners. Women are frequently selected at random during the night. These rapes are done in
a way that instills terror in the women prisoner population.
The Commission has information indicating that girls as young
as seven years old and women as old as 65 have been raped while in
30. Filipovic, Zlata, "Zlata's Diary: A Child's Life in Sarajevo," New York, Viking,
1994 (entry dated June 29, 1992).
31. Id. (entry dated July 26, 1992).
32. Secretary Council's Final Report of the Commission of Experts Established Pursuant
to Security Council Resolution 780 (1992), U.N. Doc. S/1994/674 (27 May 1994) (hereinafter
U.N. Commission of Experts].
33. This is uncommon for the United Nations since its reports are given to indirection,
understatement, and bureaucratese.
34. U.N. Commission of Experts, supra note 36, at paragraph 310.
35. U.N. Commission of Experts, supra note 36, at paragraph 319.
WHITHER LAW REVIEW
[Vol. 16
captivity. The group most targeted for rape, however, is young women between the ages of 13 and 35.
Mothers of young children are often raped in front of their
children and are threatened with the death of their children if they do
not submit to being raped. Sometimes young women are separated
from older women and taken to separate camps where they are raped
several times a day, for many days, often by more than one man.
Many of these women disappear. Or after they have been raped
and brutalized to the point where they are traumatized, they are
returned to the camps and are replaced by other young women.
There have also been instances of sexual abuse of men, as well
36
as castration and mutilation of male sexual organs.
This quotation, one should note, did not refer to Serbs, Croats, or
Bosnians. It refers to human beings, to victims.
Has the response of the international community been worthy of
the challenge posed by this kind of inhumanity? In terms of the international legal response to these crimes, we are at a midpoint. The
Commission completed its report, which was transmitted by the Secretary-General to the Security Council on May 24th and publicly reported
on June 3, 1994. A prosecutor for the International Criminal Tribunal
was finally named on July 9, 1994. Thus, this is the point of transition
between the Commission and the Tribunal. This is also a good moment
for perspective and stock taking. As to the Tribunal, the appointment of
Justice Goldstone of South Africa is by far the most promising development since the Tribunal was created by the Security Council on
paper over a year ago. Justice Richard Goldstone has an excellent
reputation for objectivity, thoroughness, and courage in the investigations he has conducted in South Africa.
However, large and important questions remain. First, will Justice
Goldstone attack the genocide issue, as well as the other crimes in the
former Yugoslavia, where they count the most-at the level of those
responsible for ordering them? Or will Justice Goldstone conduct trials
that involve only a few soldiers, and perhaps at best, mid-level officers? Second, even if Justice Goldstone tries to go after the commanders, will the Security Council let him do so? Or will the senior people
be amnestied as part of a peace negotiation through either a de facto or
a de jure arrangement?
36. U.N. Commission of Experts, supra note 36, at page 230, paragraph 230, subparagraph 0.
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On this point, some of the evidence which the Commission's
report compiles regarding command responsibility must be considered.
According to evidence received and reported by the Commission,"
there is a mass grave near Vukovar that may contain the bodies of 204
wounded Croatian soldiers allegedly taken from a hospital and dumped
into that mass grave after being summarily executed. The Commission
attempted to exhume that grave but was initially blocked by local Serbian commanders. Once the Serbian commanders' consent was received, bureaucratic machinations at the United Nations prevented the
Commission from being able to carry out the exhumations within the
time limit of its mandate. According to the Commission's information,
the operation was commanded by a major who reported to the Army
Corp Commander, who is now the Minister of Defense.
Also, the siege of Sarajevo should be considered. It violated almost every rule in the Geneva Conventions, such as targeting the civilian population and the hospitals. That 14 month operation was commanded by only three generals who cannot possibly claim not to have
known. The definition of "command responsibility" is such that, if they
knew, they are responsible. The Commission's evidence also correlates
the military activity with the political activity. The Commission noted
the following:
A review of the incidents in the chronology reveals a pattern of
heavy shelling, prior to, and during, the various peace conferences
and other negotiations, suggesting a political link to the attacks.
There are also indications that shell fire has increased or decreased
in reaction to statements by local and international political leaders
and governments.38
This evidence, if documented and proven before the Tribunal, would
lead straight to the door of the civilian leadership of the Bosnian Serbs.
Two conclusions could be drawn from this. First, that there is
significant evidence of command responsibility by top-level civilian
and military leaders for war crimes. Second, that very fact creates the
risk that they will never be prosecuted because they are needed to
negotiate peace. And, further, as part of that peace negotiation, they
will secure for themselves an amnesty.
37. This is not a finding or a conviction because that requires due process of law before the Tribunal.
38. U.N. Commission of Experts, supra note 36, at page 45, paragraph 192; Chronology
mentioned is the that of shelling of Sarajevo.
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[Vol. 16
Assume, however, that Justice Goldstone decides to go after the
leaders, the ones responsible at the top, and that the Security Council
will permit him to do so. The question that remains, from an evidentiary point of view, will he be able to do so? This turns in part on the
investigative work done to date by the United Nations Commission.
The Commission was established on October 12, 1992, and is chaired
by Professor M. Cherif Bassiouni of DePaul University's International
Human Rights Law Institute. Its database and analysts are also based at
DePaul's Institute.
In reading the news accounts of the Commission's final report, the
numbers might sound impressive: 18 months of work, 65,000 pages of
documents, and 300 hours of video-tape were analyzed by Pippa
Scott's group. All of this information was computerized, retrieved, and
turned to the prosecutor's office. It is now sitting in the Hague
awaiting the arrival of Justice Goldstone. This mass of information is
indeed adequate for a number of purposes. It can be used to derive
policy conclusions, lessons for history, and to show the existence and
execution of crimes. In the Prijedor area, for example, the Commission
concluded, "It is unquestionable that the events qualify as crimes
against humanity. Furthermore, it is likely to be confirmed in court
under due process of law that these events constitute genocide. '39 But
crimes by whom?
As Americans have been reminded in recent weeks by the coverage of the O.J. Simpson case,' there is a big difference between
knowing that a crime was committed and proving who did it. Nicole
Brown and Ronald Goldman were obviously murdered, but did O.J. do
it? Aside from the fact that many of us would prefer to believe that he
did not, his lawyers have challenged every point, every piece of evidence. Where is the knife? Are the blood stains leading from the scene
and at O.J.'s house really his? What happened to the bloody shoes?
Perhaps not until the trial will enough of these questions be resolved to
pronounce a verdict of either guilty or not guilty. Furthermore, this is a
case where the police were on the scene within hours, if not minutes;
where hundreds or thousands of hours of investigative time have already been expended; where physical evidence, including hair and
blood, which can be subjected to forensic analysis, has been recovered;
and where experienced prosecutors have been guiding the police closely since at least the first few days.
39.
40.
U.N. Commission of Experts, supra note 36, at page 43.
People v. Simpson, No. BA097211 (Super. Ct., Los Angeles County 1995).
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Now, imagine instead that the police arrived at Nicole Brown's
house, not two hours, but two years after the murders. Not only are the
blood stains gone, but the house itself has been destroyed. Imagine also
that the neighbors who were walking their dog that night have fled to
another country, where even if they can be located, they no longer
remember even the date, let alone the hour and the minute, so crucial
to the alibi defense, of what they saw.Imagine all that, and you are
Judge Goldstone beginning to plan the prosecutions in Yugoslavia.
Obviously, his task, while never easy, would face far fewer difficulties
had a team of U.N. police investigators, prosecutors, and forensic experts been dispatched to Croatia, Bosnia, and to the refugee camps to
maintain a continuous presence during the last two years and to gather
fresh evidence. Logistically and financially that could have been done.
For example, compared to the cost of the U.N. humanitarian assistance
and military presence in Bosnia, the cost of such an investigation
would have been quite small. Too much for the average person or even
for a large non-governmental organization ("NGO") like Amnesty
International, but quite manageable for the United Nations. However,
this did not happen. With some exceptions, the U.N. Commission of
Experts was relegated to receiving written reports which were often
second, third, and fourth-hand, which came from thousands of miles
away, long after the actual events. With enough data of that sort, general conclusions can be reached. However, no one can be convicted of
a crime unless it is proven beyond a reasonable doubt.
A team of investigators was not put in the field from the start
simply because the U.N. Security Council did not so desire. Professor
Bassiouni did manage to raise slightly over a million dollars in private
funds, enough to support a paper-processing operation and a computer
database in Chicago. Yet, for the first half of the Commission's existence, the United Nations gave no funds at all for its investigations. By
the summer of 1993, the United Nations, through a voluntary trust
fund, came up with over a million dollars. However, they were so slow
in disbursing it, that by the time the Commission's mandate ended in
April, 1994, about a fourth of that money still had not been spent. The
Commission was then refused permission to conclude several of its
proposed investigations. Again, within the last two weeks, the Security
Council has authorized another commission of experts to investigate yet
another series of horrendous atrocities. This time it is situated in
Rwanda. Will it be any different?
Shameful as the response of the international community has been,
it should not be enough for everyone to plunge into cynicism or de-
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spair. Despite all of the problems, there are a number of positive aspects here which should be recognized. First, the United Nations created, for the first time since Nuremberg, an international investigative
commission, as well as an international criminal tribunal. The U.N. was
not allowed to treat the war in the former Yugoslavia as only a war. It
was also forced to treat it as a massive violation of human rights. At
least in principle, that is a step forward.
Second, the existence of the Commission's report, which has been
widely covered over the last 15 months in various public media, together with the courageous work of many people in the press and
NGOs, has stimulated an informed public consciousness and concern
about the violations in the former Yugoslavia. Third, a record has been
created for history. Fourth, the Commission's evidence focusing on the
broad patterns may be especially helpful for prosecution of cases based
on command responsibility for widespread violations. The more violations, the less the importance of each individual blood stain. Now that
a credible prosecutor has finally been named, the time has come to step
up public pressure for credible prosecutions. In good conscience, no
less should be done.
III. THE PROBLEMS FACING THE WAR CRIMES TRIBUNAL AND THE
NEED FOR A PERMANENT INTERNATIONAL CRIMINAL COURT
MR. BLEICH: As others have already made clear, there are many
practical and political obstacles presently facing the War Crimes Tribunal in accomplishing its work. I hope today to identify at least the
principal challenges confronting the tribunal, clarify how it affects the
work of the Tribunal, and ultimately draw some conclusions about how
these obstacles can be avoided. In my view, most of these problems are
unnecessary. Virtually all the most difficult impediments before the
Tribunal result from, or are exacerbated by, the fact that the Tribunal is
an ad hoc body. Until the international community commits to a permanent criminal court, I believe we will continue to face great and
unnecessary challenges in bringing war criminals to justice.
At the outset I do not wish to suggest that the obstacles facing the
Tribunal are insurmountable or to otherwise speculate about the
Tribunal's ultimate success or value. Rather, I think the Tribunal is
good in the same way that Churchill is said to have believed democracy was good, that is: "democracy is the worst form of government
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[ever devised] except [for] all [the] other[s]."'" At this point, I am
optimistic the Tribunal will overcome the obstacles in its path. My
point is not to criticize the Tribunal but to suggest that the obstacles it
faces should not be present in the first place. Understanding the hurdles
before the Tribunal provides lessons about how to improve future international efforts to prosecute war crimes.
A. THE PROBLEMS FACING THE WAR CRIMES TRIBUNAL
The Tribunal presently faces a variety of difficulties, including
political resistance in the Security Council and European nations to the
Tribunal per se, bureaucratic inertia providing funding and staffing, a
lack of procedures for an ad hoc court, complicated legal and jurisdictional restrictions upon its authority, and difficulties in locating qualified personnel. The difficulties, to varying degrees, created five types
of impediments to effective prosecutions: (1) spoilation of evidence; (2)
inefficiency; (3) diminished enforcement power; (4) limited legal and
jurisdictional authority; and (5) weakened credibility.
1. Spoilation of Evidence
The key to effective prosecutions is evidence: finding it, collecting
it, preserving it, and presenting it to a jury. Although the point may
seem obvious, without evidence there are no convictions; there are not
even charges. Accordingly, a rule of thumb among police officers and
prosecutors is that the most important time in any prosecution is the
first 24 hours after the crime occurs. With each minute that passes after
the crime, the risk increases that witnesses will disappear, memories
will fade, evidence will be lost or concealed, fingerprints will smear,
and blood will dry to powder and then scatter with the wind. Effective
prosecution thus depends upon prompt, professional collection of evidence.
It is already too late for evidence of hundreds of crimes to be
properly gathered to support prosecutions by the Tribunal. The only
evidence collection that has occurred in Bosnia thus far has been done
largely in fits and starts by private organizations working on meager
budgets. 42 The Tribunal's prosecutors had no ability to collect evi-
41. THE OXFORD DICrIONARY OF QUOTATIONS 202:23 (4th ed. 1992).
42. While the U.N. was putting its plan together, several states and organizations were
collecting information in the former Yugoslavia. A project at DePaul University (overseen by
Cherif Bassiouni, who chairs the U.N. Commission of Experts), collected over 65,000 docu-
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dence of crimes in 1992 or 1993 because the prosecutors were not even
appointed until after these crimes were committed. Although evidence
certainly still exists to support some prosecutions, untold evidence has
already been lost, making those prosecutions more difficult and, other
prosecutions impossible.
The loss of evidence in the former Yugoslavia, moreover, did not
end with creation of the Tribunal. For fourteen more months, the Tribunal failed to collect evidence because the U.N. could not agree on a
prosecutor. Not surprisingly, without an independent prosecutor to
perform the investigatory and prosecutorial tasks of the Tribunal, those
tasks went unperformed. Questions were not asked, samples were not
collected, warrants were not issued, and suspects were not detained. It
was not until over a year after the Tribunal was formed that the Honorable Richard Goldstone was appointed as prosecutor. Justice Goldstone
must now attempt to build cases upon evidence collected haltingly, and
often randomly, by private organizations and individual states.
In sum, more than two years have passed since war crimes were
reported in the former Yugoslavia. Two years in which crucial evidence-witnesses, memories, bullet shells, buildings, blood samples,
torn clothes-have deteriorated or been lost for good. In many cases,
even though a crime had been committed, it may now be impossible to
prove. The failure to act quickly against these crimes has in many
cases been no different from a failure to act at all. Evidence has
spoiled, and the Tribunal must now work with what remains.
2. Inefficiency and Training
The second key to effective prosecutions is prosecutors. Even
overwhelming evidence may not be enough to obtain a conviction,
unless there are trained professionals and staff who are able to piece
this evidence together, understand the critical requirements of the law,
and present evidence that establishes each element of the offense. This
requires specially trained personnel, and of course, money. Thus far,
the Tribunal has had difficulty getting either, and its preparation has
inevitably suffered.
ments documenting war crimes. Governments and private organizations have assembled evidence of at least 5,000 specific cases along with lists of 3,500 individuals allegedly responsible for committing the crimes. Ten teams of prosecutors and mental health specialists have
collected evidence of over 1,000 rapes. The State Department has produced 650 reports of
refugee interviews, including confessions by some refugees of having engaged in atrocities
themselves. However, as Professor Cassel from DePaul University has explained, the amount
of evidence actually collected pales in comparison to the number of documented crimes.
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Until May 1993, there was no such thing as the "War Crimes
Tribunal." In fact, there had been no war crimes tribunals or war
crimes prosecution of any sort in the nearly fifty years, since the
Nuremberg trials. As a result, there has been no corps of international
prosecutors developing skills in addressing war crimes, no budget processes, no procedures for evaluating the merits of cases, no developing
body of law-in short, no professional, administrative development in
this field.
Not surprisingly then, the U.N. and the Tribunal have had a difficult time performing even the most basic tasks, such as establishing
and gaining approval of a budget, hiring qualified prosecutors, and
putting together cases. Some of this, of course, is attributable to the
U.N. not having appointed a prosecutor. But for several months there
has been a deputy prosecutor, Graham Blewitt from Australia, who has
been on duty and grappling with these issues. Mr. Blewitt's difficulties
have nothing to do with his capabilities-by all accounts he is both
talented and dedicated. The problem lies in the fact that neither Mr.
Blewitt (and now Justice Goldstone), the Tribunal staff, nor the Security Council have any recent precedent to draw upon in answering basic
questions.
The most obvious consequences of these bureaucratic problems is
that the Tribunal is under-funded and understaffed. The Tribunal's
budget of $11.5 million for the rest of the year will barely cover rent,
judges' salaries, and overhead-leaving virtually nothing for the
prosecutor's office. As a result, only a few prosecutors are on duty, and
there is almost no budget for investigators. The budgetary and staffing
problems are due almost exclusively to the fact that the United Nations
has never before budgeted for such an organization, did not have funds
reserved for this purpose, and did not have experience in evaluating
budget proposals from the Tribunal.
There are other consequences as well, however, that burden the
Tribunal's efficiency. The prosecutor's office is not only limited by a
lack of money and staff, it lacks experience among that staff. Because
there are no professional "international criminal prosecutors," the office
has had to make do with domestic prosecutors, most of whom have no
training in international law, let alone international humanitarian law.
These prosecutors face a very steep learning curve in mastering complex questions of jurisdiction and customary international law, the new
procedures of the Tribunal, and working with independent State governments to obtain evidence. In sum, the Tribunal presently faces a
WHITTIER LAW REVIEW
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deficit of money, prosecutorial resources, and experience that will
increase its burden of successfully prosecuting war criminals.
3. Legal and JurisdictionalProblems
A third key to prosecuting crimes is a well-developed body of law
setting forth specific and readily applicable standards. Prosecutors
enforce the law, and thus a prerequisite to prosecutions is having some
understanding of what that law is.
There are a broad range of unsettled questions of law raised by the
Balkan conflict. For example, the Genocide Convention applies only to
armed conflicts between internationally recognized states. There are
potential questions about whether the Serbian Federal Republic qualifies as a state or is otherwise bound by the Genocide Convention.
There are questions about the standard of proof. As a practical matter,
these questions may determine whether leaders who advocated Serbian
"purity," for example, can be held responsible for the ethnic cleansing
campaign under the doctrine of command liability, and if so, whether
their participation must be shown beyond a reasonable doubt.
Many of the standards that will be employed are entirely novel.
For example, rape is recognized for the first time as a crime against
humanity, provided that it is committed within the context of a widespread or systematic attack against a civilian population for national,
political, ethnic, racial or religious reasons. It is unclear what standard
of proof will be necessary to show whether individual attacks against
Bosnian Muslim women will qualify under this standard.
It is impossible to predict all of the legal issues that will arise in
the course of these prosecutions. However, the risks that attend so
many unsettled questions are clear. Prosecutors may devote vast portions of their scarce resources to proving crimes that are ultimately
non-cognizable by the Tribunal or impossible to support under the
relevant standard of proof. By the same token, prosecutors may be
discouraged from pursuing viable actions because of their misunderstanding of existing law. The Tribunal, as well as defendants, may
waste precious resources deciding cases that are later made moot by
discovery of a previously unconsidered legal difficulty.
In sum, the ability of the Tribunal to do its job will be hampered
by present limitations on the understanding of international criminal
law. Prosecutors may have difficulty in knowing who to prosecute, or
even what crimes to prosecute, and risk diverting their energies from
appropriate cases.
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4. Lack of Enforcement Powers
A fourth key element to successful prosecutions is--obviously
enough-the opportunity to prosecute. Even an "open and shut case"
will not result in a conviction if there is no trial or opportunity to present that case. At present, there is no assurance that Tribunal prosecutors
will, in fact, be able to try cases. Even after they have identified suspects and built a sufficient case to warrant prosecution, prosecutors
must still gain custody over the suspect. The Tribunal rules require that
the defendant must be present in order for a case to go forward, and
thus the rules empower the prosecutor to issue indictments for the
arrest and detention of suspected war criminals. That power, however,
may be limited by important practical concerns.
States have historically been reluctant to turn over their nationals
for international prosecution in cases where those nationals hold positions with the Government or arguably acted in a manner consistent
with the Government's policies. Only two years ago, Libya refused to
extradite two intelligence officials who were suspected of killing over
100 civilians by placing a bomb on Pan Am flight 103. With Serbia
likely to prevail in the conflict, the chances of it surrendering its nationals is remote. Indeed, even defeated nations have been able to hide
certain high level officers from prosecution. Several German officials
eluded the Nuremberg prosecutors, and ended up being tried in absentia.
Under the statute, failure to cooperate in extradition may be sanctioned by the Security Council either in the form of provisional measures, economic sanctions, or armed force. But, there too, the law may
not as a practical matter dictate what occurs. International bodies have
been reluctant to use any so-called "interim" measures based upon
concerns about national sovereignty. The possibility of non-action by
the Security Council is particularly acute, given the ambivalence of
Russia and Great Britain toward the whole enterprise of criminal prosecutions.
The need for politics and diplomacy in resolving the Balkan conflict will introduce further impediments to extradition. Even in post-war
periods, where the atmosphere is more conducive to wide-spread prosecution, selective extradition and prosecution are typical. In Nuremberg,
for example, it is no accident that allied nationals who committed
atrocities were not prosecuted. Even among the vanquished states, the
Nuremberg prosecutor pursued only 26 of 250 high Japanese officials,
and conspicuously omitted Emperor Hirohito. With Serbia a likely
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victor, international pressure may exist to settle the prevailing government in a volatile region. Again, the fact, that no international summons procedures are in place and there is no history of cooperation or
precedent to draw upon, will most likely work against the Tribunal.
5. Political Will and Credibility
The last key to successful prosecutions is the community's confidence in the justness and wisdom of the prosecutors and the Court.
Unfortunately, doubts about the purpose of the Tribunal and its ability
to deliver justice have already surfaced. Specifically, some in the international community question the motivations for creating a Tribunal in
this case when comparable crimes against humanity have gone unprosecuted in Cambodia, Tibet, Rwanda, Bangladesh, Haiti, and in numerous
other conflicts. Some complain that introducing a Tribunal at this stage
may only interfere with attempts to establish peace in the region. Accordingly, some wonder if the international community is attempting to
impose its own notions of justice at the expense of more Balkan lives.
If the Tribunal's decisions prolong hostilities, they fear the public will
question whether the United Nations and the Tribunal are producing
justice at all.
Even those who favor the creation of the Tribunal worry that
certain aspects of its creation may call the Tribunal's credibility into
question. Specifically, there is something unsettling about creating a
criminal justice system after the international community already has
suspects in mind. The timing creates the perception, correct or not, that
judges, prosecutors, rules, and the entire apparatus of justice are being
constructed to ensure the conviction of specific individuals. Defendants
will no doubt challenge the fairness of the Tribunal on this ground, and
their arguments may well color the international community's confidence in the justness of the Tribunal's work.
Finally, as delays mount, some observers fear that the Tribunal
could potentially set back the cause of international justice in the
broadest sense. Specifically, these observers worry that if the Tribunal
fails to prosecute effectively (due to loss of evidence, confusion in the
law, lack of training, and the related problems discussed above), the
public will lose confidence in humanitarian law or will question whether U.N. reports of the terrible atrocities in the Balkans were accurate.
Delays in the Tribunal and widely-publicized political disputes over
personnel and' peace initiatives have thus created a risk that the Tribunal will not, in fact, vindicate the international community's interests.
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6. The Costs Of These Problems
The sum of these problems is thus far reflected in the work of the
Tribunal. The Tribunal has held only one session to date and that was a
purely ceremonial meeting in November 1993, with no actual business
conducted. No indictments have been issued. The failure of the Tribunal to bring war criminals to justice does not merely hurt the Tribunal
as an institution. Rather, this is the least of the damage caused by the
disappointing performance of the U.N. thus far. The primary casualties
of non-prosecution are the victims themselves and the outraged community. Prosecution and conviction are intended at least in part to
vindicate the interests of the community. As long as criminals go unpunished, the community suffers.
The community also suffers from increased criminality. When
there is a delay in bringing criminals to justice, those criminals remain
free to commit more crimes against more people. At least in theory,
other criminals are encouraged to commit crimes because they understand that the community lacks the ability to exact retribution. The
community suffers directly from these new crimes, as well as indirectly
from the sense of helplessness and fear that comes with being powerless.
Finally, the stature of international law and the international justice system suffer. The failure to respond adequately in Bosnia threatens to make all of humanitarian law suspect. If the most extreme affronts to humanity can go on unchecked-war crimes, genocide, and
brutal crimes against humanity-then the public may justifiably conclude that humanitarian law has no practical effect or meaning. Accordingly, there is a great need to understand the causes of systemic problems in the prosecution of war criminals in the former Yugoslavia in
order to ensure that these problems do not continue to recur.
B. THE CAUSES OF THE TRIBUNAL'S PROBLEMS: "AD HOCRACY"
Many factors including politics, bureaucracy, incompetence, bad
luck, and the rest of the usual suspects, have been blamed for the problems described above. Although all of these factors have had their role,
these problems are inevitable. They can be minimized but never eliminated from any human institution. The key difficulties facing the Tribunal that can be addressed all relate to one feature: ad hoc structure. The
ad hoc nature of the Tribunal has contributed significantly to unneces-
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sary delays, politicization, erosion of the Tribunal's credibility, inefficiency, limitations on the law it will apply, and the stature of its work
in general.
1. Delay and The Loss of Evidence
The main reason that the Tribunal will be deprived of key evidence and the reason that thousands of war criminals remain uncharged, is that there was no Tribunal around to initiate prosecutions
when these crimes first occurred. There is, as present, no permanent
international criminal court. As noted, the Tribunal is the first international criminal court established since the Nuremberg Tribunal in
1946. 4" Accordingly, years passed since the first crimes in the Balkans
were committed without an international instrument to adjudicate these
crimes. The fact that the Tribunal had to be built from scratch, more
than any other reason, explains why the Tribunal's history thus far has
been one of delay.
The United Nations did not even agree to a Tribunal in principle
until a full year after it first obtained information about war crimes in
the Balkans. Much of the first year of delay can be attributed to the inherent difficulty of constructing an institution that has 'never previously
existed in human experience." Reports of atrocities in the former Yugoslavia were coming out of international organizations as early as
Spring 1992. However, because no formal international prosecutorial or
police apparatus existed to investigate these crimes, the Security Council, in August, 1992, at first reacted to reports principly with statements
of disapproval. After six months, the Security Council issued a strongly
worded resolution condemning the reported war crimes, but it still had
no vehicle to take formal action. Two months later, the Security Council commissioned an impartial Commission of Experts to consider
whether the possibility of prosecuting these crimes was warranted.
More time elapsed as the Experts conducted their investigation and
reported that grave breaches of international humanitarian law were, in
fact, ongoing.
43. Agreement for the Prosecution and Punishment of the Major War Criminals of the
European Axis Powers and Charter of the International Military Tribunal, Aug. 8, 1945, 59
Stat. 1544, 82 U.N.T.S. 284.
44. The Nuremberg Tribunals-the closest analogy-was not in fact a body representing
the international community as a whole, but was created by a special treaty of the victorious
nations after World War !I.
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In February 1993, the Security Council finally adopted resolution
808 which held, in principle, that an international war crimes tribunal
would be created, but did not propose the form of that Tribunal. That
was left to the Secretary-General. Even working quickly, it took three
more months before the Security Council adopted resolution 827 approving the Secretary-General's plan that formally established the Tribunal. Thus, a full year's worth of brutal international crimes occurred,
without any formal U.N. apparatus capable of prosecuting them.
Delays continued into a second year, again because of the
Tribunal's ad hoc origins. Much of the delay in the second year after
hostilities began was caused by political machinations over the selection of a prosecutor. The politics surrounding selection of a prosecutor
were greatly exacerbated by the fact that the Security Council was not
merely selecting an ad hoc prosecutor, but was selecting a prosecutor
to pursue specific individuals for specific deeds. As a result, between
May and October 1993 several prosecutorial candidates were rejected
based on objectives relating specifically to the crimes and figures alleged in the former Yugoslavia. Great Britain, in particular, did not
want an overzealous prosecutor who might interfere with Lord Owens's
peace initiatives. Thus, Cherif Bassiouni, an American, was vetoed by
the British, because of concerns that he would be too active. Likewise,
the United States vetoed Great Britain's candidate-an Indian constitutional law scholar with no experience as a prosecutor or in international
law-from fear that he would be too passive in bringing Serbian war
criminals to justice.
On October 21, 1993, after months of wrangling, the Security
Council appointed Venezuela's Attorney General, Ramon EscovarSalom: a compromise choice who showed little enthusiasm for the job.
Escovar-Salom first informed the Security Council that he would not
be able to take office until December. A few months later he resigned
to take a post as minister of justice in his own country.
Another five months passed with no successor selected, allowing
new political concerns to surface, and turning selection of a prosecutor
into a bargaining chip. Russia blocked two candidates, an American
and a Canadian, based upon growing qualms over the efficacy of the
Tribunal. The political machinations over the prosecutor demonstrate
that politics can be far more easily exploited where no system is in
place and a prosecutor must be selected to prosecute particular crimes
as opposed to all crimes.
Finally, even with the appointment of Justice Goldstone, delays
will almost inevitably continue. This is due in large measure to the
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problem of the Tribunal's ad hoc creation. The posting of a prosecutor
is only a first step in making the Tribunal functional. The Tribunal still
must generate a workable budget, locate and train qualified staff members, sift through mounds of evidence, and begin long-overdue investigations before it can begin issuing indictments. Had the Tribunal been
a pre-existing body, it would already have had a budget, staff, and a
system for investigating evidence in place. Accordingly, delays in
prosecutions and the problems that come with delay have occurred in
the War Crimes Tribunal largely because the Tribunal was not in existence at the time the crimes occurred.
2. Inability To Develop A Coherent Body of Law and Procedure
The second set of problems confronting the Tribunal- uncertainties about international criminal law-also stem from the Tribunal's
post hoc creation. Because there has not been a Tribunal to adjudicate
international criminal law since Nuremberg, international criminal law
has gone, untested for five decades. The principles set forth at
Nuremberg have had no opportunity to mature with society, and now,
understandably, do not necessarily fit the goals or values of an evolving civilization.
American lawyers are familiar with the idea that words change in
their meaning over time as society continues to revisit, ponder, and
experiment with the interpretation of those words. The terms "due
process," "equal protection of the law," and "cruel and unusual punishment" have resisted any fixed meaning over time. For example, when
the Bill of Rights was first ratified, it was not cruel or unusual for the
government to crop the ears of a convicted criminal, nor was it understood that a criminal defendant was entitled to an attorney, regardless
of his ability to pay. Today, the unaltered words of the Constitution
convey precisely the opposite understandings.
The principles enunciated by the Nuremberg Tribunals are no
different from any other legal principles and require the same type of
elaboration. The Nuremberg trials first established the notions of "command liability," "crimes against the peace," and "individual criminal
liability under international law." However, in the Nuremberg and
Tokyo trials, the crimes were committed by officials of sovereign
states. Moreover, those states had invaded other sovereigns, and, in
Germany's case, had instituted a formal policy of eradicating entire
segments of the civilian population. It is an open question how these
Nuremberg principles will apply where Serbia's sovereignty is suspect,
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where there was no formal war by Serbia in Bosnia, and where Serbian
leaders deny that soldiers are acting pursuant to Genocidal policies.
In the years since World War II, other situations have arisen that
would have justified wide-scale war crimes prosecutions and allowed
the elaboration of international law principles. Pol Pot's massacres in
Cambodia, although not directed at a specific "culture" or sovereign,
were nonetheless a systematic murder campaign in violation of international law. The same is true of Stalin's purges in the former Soviet
Union and Idi Amin's slaughters in Uganda. The rape of over 200,000
women in Bangladesh by Pakistani soldiers, was not "murder", but it
was nonetheless a campaign to destroy a culture by "soiling" its women and altering their bloodline through forced impregnation. At present,
the killing of Buddhists in Tibet and the mass atrocities in Rwanda
would justify investigation and prosecution. Each set of prosecutions
would have permitted further elaboration of the principles of international humanitarian law, including the scope of individual liability, the
elements necessary to establish command liability, and the viability of
"crimes against the peace" or comparable innovations. Instead, no such
developments have occurred.
In describing the evolution of law, Thomas Jefferson said, "[W]e
might as well require a man to wear still the coat which fitted him
when a boy, as civilized society to remain as under the regimen of
their barbarous ancestors."45 Yet that is what has been done with international criminal law. The U.N. in many ways has straight-jacketed the
Tribunal with the undeveloped Nuremberg model. Some portions of the
law developed at Nuremberg are not only undeveloped, they are flatly
out-of-date. For example, Nuremberg permitted prosecution of crimes
that were not recognized as law at the time the crime was committed.
Before Nuremberg, there was no such thing as individual liability in
international law, or "crimes against the peace." The application of
such laws would probably be unconstitutional in American courts under
the federal constitution's ex post facto clause. Likewise, Nuremberg
permitted trial in absentia and imposition of the death penalty, both of
which are now condemned under international law. Although good at
the time, the law of Nuremberg must now be stretched, altered,
hemmed and tightened to fit a maturing society.
The lack of legal development is unfair to the Tribunal's prosecutors and to the international community. For example, rather than
45.
Schneiderman v. United States, 320 U.S. 118, 137 n.15 (1943).
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building cases, the prosecutors must wonder if there are laws that
would even permit them to prosecute Karadzic or Milosevic and other
command figures at all. This uncertainty saps the prosecution's resources and may result in wasted prosecutions.
3. Inexperienced and Inefficient Prosecutors
The same problems that have caused under-development in international criminal law are also responsible for the shortage of trained
prosecutors. Good prosecutors are not born that way. They require
experience, direction, and support in order to develop. Because no
international criminal court has operated in fifty years, over two generations of lawyers have passed without any development of a trained
corps of international prosecutors. Although the Tribunal has hired
highly talented domestic prosecutors, these prosecutors are handicapped
by the lack of.historical precedents in international fora in three ways.
First, while the saying may be trite, there is no substitute for experience. Domestic criminal prosecutors typically develop skills related to
their particular specialty. In the United States, attorneys will often
divide between attorneys who litigate in federal courts and those who
litigate in state courts. This makes sense for efficiency reasons and
because the rules, procedures, nature of argument, the law, and even
the atmosphere may differ markedly between the courts. Many skills,
of course, are transferable. However, no state prosecutor's office would
voluntarily agree to a rule that prohibited it from allowing the same
attorney to appear in the same court twice. The subtle skills developed
in court appearances are invaluable to skillful advocacy.
Second, because no courts have prosecuted war crimes since 1945,
there are no attorneys today who can give up-to-date advice on preparing war crimes cases, if there are any attorneys left at all. Without
knowledgeable tutors, prosecutors will make mistakes that could be
avoided. Prosecutors have no alternative but to learn by trial and error.
Third, because there has not been a permanent court, there has not
been an administrative system created to facilitate prosecutions in that
court. Prosecutors will inevitably face organizational problems or be
distracted from their principal duties in order to attend to administrative
issues. To reiterate, the problem of inefficiency and effectiveness relates directly to the absence of a pre-existing international tribunal to
provide a training ground for international criminal prosecutors.
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4. Loss of CredibilityFor Court
Attacks on the Tribunal's credibility and capacity to dispense
justice almost exclusively relate to the method of the Tribunal's creation. The key concerns about th4 Tribunal's ability to act justly are:
(1) the fact that its introduction is unprecedented; (2) it may unsettle
attempts at "political" justice in the region; and (3) some doubt the
impartiality of a court whose prosecutors, judges, procedures, and legal
rules were selected specifically for the prosecution of specific acts and
crafted for known suspects.
Had a criminal court already been in place, objections to the
Tribunal's fairness per se would be largely eliminated. If the criminal
court already existed in the background, its decision to prosecute would
not be seen in the context of peace initiatives but for what it is-a
separate entity addressing a separate set of issues. A Tribunal is not
concerned with war, peace, or politics, but only with crime and the
administration of international law. Likewise, if the Tribunal existed as
a permanent fixture prior to the time atrocities began to occur, there
could be no suggestion that the judges, prosecutors, or rules of the
court, were crafted to ensure the conviction and punishment of specific
individuals.
Although I do not think there is anything inherently unfair about
how the Tribunal was created or that the Tribunal will not deliver
justice, public perceptions of fairness and confidence in the Tribunal
are weakened by the ad hoc nature of the Tribunal. Ad hoc administration creates, at the very least, the appearance of impropriety, which is
counter-productive to achieving international justice.
5. Risks To The Stature of HumanitarianLaw
Lastly, concerns about the stature of international humanitarian
law and the impact of the Tribunal upon that law, are closely tied to
the Tribunal's post hoc creation. Humanitarian law, as a whole, has
been threatened by the fact that no Tribunal was in existence at the
time the crimes were committed and by the problems arising from
delay and inexperience. Bosnia demonstrates the importance of punishing war criminals as an expression of international commitment to
humanitarian law. The fact that we are not administering any punishment so far, places the credibility of international humanitarian law in
doubt, and exposes just how tenuous that law really is.
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International humanitarian law is largely untested. The body of
international humanitarian law has been developing steadily since
World War II through treaties and conventions, U.N. resolutions, and
scholarly articles, yet few of these laws have been formally tested by
judicial organizations. How we respond to the situation in Bosnia may
tell us whether this law has any force at all.
What we have seen thus far is extremely damaging to the stature
of international humanitarian law. The public sees pictures of skeletonthin Muslim and Croat soldiers dying in Serbian concentration camps
and reads reports of torture, killing grounds, mass graves, and starvation rations at these camps. The existence of crimes is undeniable. The
public is properly amazed that, for all the talk about humanitarian law,
the United Nations has no enforcement mechanism in place to address
such conduct on a regular basis. Eighty-five percent of the 200,000
people killed thus far in the Balkans were civilians. Tens of thousands
of other civilians have been enslaved and raped in camps. Whole civilian populations are displaced or forced to do unspeakable acts. There is
a systematic effort, at least by the Serbian government, to exterminate
other races entirely-by mass murder, by rape, and by humiliation
calculated to destroy their cultural identity. After three years of this,
due largely to the fact that no permanent institution existed to address
these war crimes, no indictments have been brought in any international forum and no punishment has been meted out.
Failure to swiftly and effectively punish war criminals in the Balkans could do more than eliminate the accomplishments of the past five
decades. It could potentially set back human rights to pre-World War II
standards. The message delivered by the absence of a permanent court
is that the international community lacks the power to punish government officials who, in war-time, commit crimes against humanity. If
we cannot adequately prosecute war criminals in the former Yugoslavia, then even the Nuremberg and Tokyo trials no longer stand as
examples of the international community punishing criminals. Instead,
they are limited to their circumstances: victors expressing their triumph
over the vanquished. Without prosecutions in war time, war crimes
appear enforceable only against those who are now powerless.
The failure to respond adequately in Bosnia thus threatens to make
all of humanitarian law suspect. Unsuccessful action may, in fact, degrade international law to some lesser status. If the most extreme affronts to humanity can go unchecked, then international humanitarian
law is not really law at all; it becomes nothing more than an elaborate
statement of international disapproval. The status of international law
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thus depends upon confidence that the law can and will be enforced.
That stature is compromised where, as here, we face the most blatant
and extreme human rights violations-war crimes, crimes against humanity, and the systematic extermination of a race. The international
community has no body immediately available to deal with these
crimes.
In sum, many of the difficulties facing the Tribunal and international humanitarian law stem from or are exacerbated by the ad hoc
nature of the Tribunal. The fact that no Tribunal existed when crimes
against humanity were first discovered has caused tremendous delay.
The Security Council has had to create a system from scratch and is
unguided by a comparable system or by experienced professionals. It
must locate money for its budget that it did not have, and it lacks any
expertise even on what an appropriate budget should be. While it struggles with these issues, those who have political objections to the Tribunal have been able to use the delays and uncertainty to inhibit the
progress of the court. Finally, the fact that the rules, officers, and mandate of the Tribunal were selected with a specific set of deeds and
actors in mind, as opposed to merely the prosecution of humanitarian
crimes per se, makes it far more likely that political factors will come
into play, undermining the force of the Tribunal's decisions. Thus, "ad
hocracy" has threatened not only the Tribunal's success, but the success of international humanitarian law as a whole.
C.
WHY THE AD Hoc MODEL EXISTS
Given the obvious shortcomings of creating war crimes tribunals
ad hoc, it is reasonable to ask why this system exists at all. It appears
'that there are three reasons why the ad hoc model, with all of its problems, has been adopted: (1) rote reliance on the Nuremberg Trials; (2)
inertia in the international community; and (3) lack of commitment to
human rights.
1. The Fallacy Of The Nuremberg Model
The international community takes understandable pride in the
accomplishments of the Nuremberg Tribunals, which for the first time
established that individuals may be held accountable for their crimes
under international laws. Nuremberg, of course, is the best model in
part because it is also the only model. The Nuremberg model, is not
without its flaws, however. Nuremberg was in some ways a great success"but its successes were not due to its ad hoc nature or its adminis-
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tration. If anything, the hasty, post hoc creation of the Nuremberg trial
may have limited its effectiveness. Nuremberg was set up out of necessity, and not by design. Thus, it is, at the very least, not a paradigm of
an efficient court system.
The fact that the United Nations patterned the War Crimes Tribunal after the ad hoc Nuremberg Tribunal makes clear just how un-focused the United Nation's thinking has been about punishing international crime. The Nuremberg model is uniquely ill-suited to the task
facing the Tribunal. Yet, the Security Council largely overlooked the
vast differences in the posture of the issues in Nuremberg compared to
what exists in the Balkans today.
First, efforts to collect evidence and indict criminals were not as
urgent in Nuremberg. The war crimes at issue at Nuremberg were in
the past: Germany was vanquished before the four "victorious powers"
entered into a treaty creating the Tribunal. Second, the crimes had
already been committed before Nuremberg could be created. Individual
liability for international violations had previously not been recognized
until after the Holocaust was completed. No new crimes were. being
committed while the Court went about its work, and the situation was
effectively neutralized. Unlike the Balkans, the Court had many of its
principal suspects in custody and had physical control over the evidence. Accordingly, although the victorious powers had no choice but
to set up the Court as they did, they were fortunate to have had the
luxury of time to construct a court from scratch.
While Nuremberg could operate in an ad hoc manner, that does
not mean its ad hoc structure was optimal. If anything, the fact that
Nuremberg was created after the fact interfered with its operation. As
with the War Crimes Tribunal, the Nuremberg Court faced difficulties
with respect to lost evidence, uncertainty about the law, and inefficiency. As a result, although thousands of individuals participated in Nazi
war crimes, atrocities, and genocide, only 18 people were in fact prosecuted at Nuremberg, and only 26 were prosecuted at the Tokyo trials.
In borrowing from the Nuremberg Tribunal's experience, therefore, the Security Council may have borrowed the wrong parts. Although Nuremberg may be a useful prologue for the War Crimes Tribunal, it is not a responsible method to systematically address recurring
violations of international humanitarian law.
2. Civil Law Bias Of InternationalJurists
The second reason why the international community may have
embraced an ad hoc Tribunal model for criminal law is that the ad hoc
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model is familiar to civil lawyers. The international community remains
predominantly civil law oriented, and looks to civil law concepts. Ad
hoc Tribunals have been used routinely in the civil context, and generally work well where timing is not as critical and the legal challenges
are very different. Examination of several international tribunals, including the Iran-United States Claims Tribunal, the Permanent Court of
Arbitration, and the International Court of Justice, reveals that the civil
law system simply does not transfer well to the criminal system.
For example, the Iran-United States Claims Tribunal has successfully resolved over 4,000 claims arising from disputes during the revolution in Iran during the late 1970s, even though it did not begin its
work until years after the civil claims became ripe. Commonly, in civil
cases, the Tribunal sits idle for over a year before it has a system in
place for processing claims. It adopts its own rules, sets compensation,
establishes staffing needs, and formulates procedures for docketing,
prioritizing, and hearing cases. Lately, as the Tribunal has narrowed its
docket down to the most difficult cases, its progress has again slowed.
And yet, the Iran-United States Claims Tribunal has still been able to
serve its purpose because the damages at issue are monetary, the harms
are not ongoing, and the evidence,mostly concerning contract terms, is
not particularly susceptible to spoilation. The fact that none of these
factors apply in the criminal context is largely overlooked by lawyers
with a civil law orientation.
If more international lawyers were also criminal lawyers, they
would most likely recognize the inadequate fit between the civil law
model and the type of court system necessary in the former Yugoslavia. However, because of the civil law bias, the ad hoc model is retained in the criminal context.
3. 'Ambivalence About InternationalHumanitarianLaw
Third, and most disturbingly, we cannot deny that how we choose
to enforce certain laws reveals the level of our commitment to those
laws. Ultimately, what is most disconcerting about the impediments to
the War Crimes Tribunal is that they are generally accepted. There is
an acquiescence to such impediments, even an expectation that these
obstacles will exist to enforce humanitarian rights.
As discussed more fully below, establishing a permanent criminal
system remains controversial within the United Nations. The international community's ambivalence must be recognized not as a condition,
but as a choice. The United Nations has, by default, adopted a system
of waiting until after crimes have been documented before establishing
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an organization to enforce those criminal laws. This is roughly the
equivalent of waiting until the house is on fire before passing a resolution to create a fire department. One cannot claim that this demonstrates a real commitment to addressing the problem. If fifty years after
Auschwitz, the London Agreement, the Nuremberg Trials, and the San
Francisco Convention, it is still accepted that there is no permanent
functioning international system in place for punishing even the most
egregious of human rights violations, then a weakness in international
commitment to vindicating human rights is ultimately the culprit. It is
thus apparent that, at some level, the international community lacks a
commitment to humanitarian law that must be addressed before any
real progress in human rights can be achieved.
D.
THE CASE FOR AN INTERNATIONAL CRIMINAL COURT
The case for establishing an international criminal court has been
considered in a number of worthwhile articles.' It is worth discussing
some of the arguments raised in opposition to creating an international
criminal court if only to demonstrate that those arguments do not stand
up in light of the experience in the Balkans.
First, it should be noted that resistance in the United Nations and
the international community to a criminal court originated out of United Nations's inefficiency rather than incompetence. The General Assembly first considered the idea of an international criminal court in
1948, and, following an International Law Commission ("ILC") report, 7 concluded that an international criminal court was both possible
46. See, e.g., H.R. 66, 101st Cong., 1st Sess. (1989) (calling for creation of international
criminal court); ABA Section of International Law and Practice, Report to the House of
Delegates, August 3, 1990 (supporting establishment of criminal court); ABA, Task Force on
an International Criminal Court (Summer 1992); BENJAMIN B. FERENCZ, AN INTERNATIONAL
CRIMINAL
COURT:
A STEP
TOWARD
WORLD PEACE
77 (1980);
J.
STONE &
R. WOETZEL
(eds.), TOWARDS A FEASIBLE INTERNATIONAL COURT (1970); John Bridge, The Case For An
International Court of Criminal Justice and the Formulation of International Criminal Law,
13 INT'L & COMP. L.Q. 1255 (1964); Krass, Bringing the Perpetrators of Rape In The Balkans To Justice: Time For An International Criminal Court, - YALE L.J. - (draft dated
Apr. 1, 1994, on file with author); Vespasian V. Pella, Towards An International Criminal
Court, 44 AM. J. INT'L L. 37 (1950); Michael P. Scharf, The Jury Is Still Out on the Need
for An International Criminal Court, I DUKE J. COMP. & INT'L L. 135 (1991); Quincy
Wright, Proposal for an International Criminal Court, 46 AM. J. INT'L L. 60, 71 (1952);
Quincy Wright, The Scope of International Criminal Law: A Conceptual Framework, 15 VA.
J. INT'L L. 561 (1975).
47. Report of the International Law Commission to the General Assembly, 11 U.N.
GAOR Supp. (No. 9), U.N. Doc. A/3159 (1956).
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and desirable. From 1951 to 1954, a series of committees attempted to
draft a statute for an international criminal court and a draft criminal
code. The General Assembly however was reluctant to establish a court
until it was certain about the law this court would enforce. The debate
thus bogged down for nearly twenty years until the General Assembly
reached some agreement on the meaning of the term "aggression" in a
draft criminal code. By this time, however, the United Nations had
forgotten about most of the ILC's work concerning the Court. It was
not until 1989 that the United Nations seemed to rediscover the ILC
Report, and request that the ILC elaborate on its proposal for an international court. In 1992, the General Assembly commissioned the ILC
to make establishment of an international court a priority. As of yet,
however, no formal report has been issued.
Although the United Nations's delay was not intentional, the net
effect of this delay has, ironically, been more delay. Rather than suffering embarrassment at its inability to put a good idea into action for
over forty years, many within the United Nations now seem compelled
to justify the long delay by finding fault with the establishment of a
criminal court. Such arguments, however, are largely without either
intellectual or practical force.
The principle arguments raised in opposition to the Court are that
an international criminal court would intrude upon State sovereignty,
interfere with peace processes, and simply become another expensive
and unproductive U.N. bureaucracy.48 These contentions, however, are
unconvincing when pitted against the very tangible benefits to the
community of switching over to a permanent court system.
First, concerns about State sovereignty are already being addressed
by the ILC on all levels. Thus, because these concerns are in the process of being resolved, discussing complaints about sovereignty in the
abstract tends to be akin to aiming at a moving target. Nonetheless, at
any level the big question is how a permanent court could intrude upon
sovereignty more than the system that we already have in place. The
present system allows a disfavored nation to be singled out for prosecution by a specially created court. A permanent court would be no worse
than a War Crimes Tribunal and would likely be better in that it would
be more predictable and less subject to discrimination. Objections to a
permanent court thus appear to be related more to complaints about international criminal courts at all than to a permanent criminal court.
48. See, e.g., George A. Finch, An International Court: The Case Against Its Adoption,
38 A.B.A.J. 644 (1952).
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Sovereignty considerations further pale when one considers the
system of international criminal justice that is now in place. In frustration over the sluggish pace of international justice, many States have
opted to take matters into their own hands. The United States Supreme
Court has found no violation of U.S. constitutional or international law
in prosecuting individuals in federal courts who were kidnapped by
U.S. officials from other sovereign states. To believe that an international court acting within the U.N.'s mandate will exact a greater toll
on state sovereignty than a system of sanctioned kidnapping defies rea49
son.
Second, concerns about diplomacy are also a red herring. It is true
that prosecutions of war criminals in some situations may exacerbate
political tensions. However, these concerns may be muted largely by
the fact that prosecution is always discretionary. In some cases prosecutors may choose to wait or refrain from prosecution in an international
court, just as domestic prosecutors may consider community unrest
before proceeding against gang leaders. Moreover, concerns about
short-term diplomatic issues miss the larger point. Ultimately, as the
situation in Bosnia itself reveals, it is more destructive to long-term
international peace to allow war criminals to go unpunished and allow
animosities to fester.
Third, there is, of course, a risk that any institution created by the
United Nations will devolve into an unproductive bureaucracy, but this
seems like a poor reason not to attempt to develop productive organizations. The main reasons that U.N. organizations fail relate less to the
institutions themselves than to how they were formed. The ICJ has, by
most accounts, been somewhat disappointing. As Professor Koh has
accurately stated, the ICJ has "failed to provide a meaningful forum ... for enunciating international human rights norms or curbing
national misconduct."5 The shortcomings of the ICJ, however, lie
principally in the shortcomings of the document that established the
ICJ-the statute of the court severely limits recourse to the ICJ (because of limitations on compulsory jurisdiction and the requirement
that only states may advocate an individual's claims) and limits the
49. Other problems with relying upon domestic courts to try one's nationals include
whether they are likely to provide fair trials. Domestic courts also face such fundamental
obstacles as obtaining jurisdiction over the suspect, getting physical custody, effecting service,
establishing superior venue, overcoming claims of immunity, and ultimately trying to enforce
the judgment.
50. Harold H. Koh, Transnational Public Law Litigation, 100 YALE L.J. 2347, 2360
(1991).
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vision in the ICJ's decision (based on the same jurisdictional restrictions). 1 The ICJ's experience thus does not militate against establishing a criminal court, but merely argues against modeling such a court
after the ICJ. In sum, despite the risks of bureaucracy, the more important issue is to consider the alternative. Rather than risk establishing a
bureaucracy, we have adopted a model that is sure to be even worse:
an "ad hocracy."
E. CONCLUSIONS
The Tribunal presents a great opportunity to extend the
Nuremberg model beyond victory courts and to establish a genuine
form of judicial sanction for international crimes. But with this opportunity also comes the risk that if it is unsuccessful, the Tribunal will
marginalize the Nuremberg Tribunal's achievements. Already this is
happening. Over the past several months, the moral imperative to respond to the atrocities being committed in the former Yugoslavia has
deteriorated in both public and international discourse. It appears to the
public that because the international community is not doing anything,
it probably cannot do anything.
The international community must have an effective system for
punishment for the same reasons every civilized society punishes criminals: (1) to vindicate the rights of victims; (2) to express our outrage;
(3) to deter crime by others; (4) to protect our members from these
criminals while they are confined; and (5) to rehabilitate individuals
who have lost their way. But the international community needs to
punish, in this case, for another reason as well-to demonstrate to its
members that human rights exist at all. If war criminals go unpunished
then it will be hard to convince those who look to the international
order for protection that any human right is safe.
51. The problems with attempting to vindicate human rights through the ICJ are manifest. The most obvious problem with the ICI is that only states and not individual defendants can be held accountable for crimes within the ICJ's jurisdiction. Thus, most human
rights claims are outside of its jurisdiction. The other problem is that the ICJ has limited
power. Over a year ago, the ICJ issued provisional measures against the Serbian Federal
Republic, ordering the Serbian government to take all measures within its power to prevent
the crime of genocide. This has had no observable effect. Even some of the better-intentioned countries are apt to exploit this weakness, as our own country made clear in the
Nicaragua case. Thus, if a state objects to the World Court's exercise of jurisdiction, it is
essentially free to ignore the judgment rendered.
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The Tribunal, and all the problems of creating it, stand as symbols
of the real impediment to the vindication of human rights. Until we
create a permanent enforcement regime, we, as an international community, have not fully committed to the concept of human rights. The
Tribunal today stands not as a symbol of international commitment to
human rights but as tangible evidence of the international community's
unmatured resolve.
An International Criminal Court must be established if we are to
learn anything from the Tribunal's experience thus far. As Nelson
Mandela recently said, profound social change is always impossible
until it happens, and then it is inevitable. International enforcement of
human rights protections is inevitable, but the issues that presently face
the War Crimes Tribunal reveal how far the international community
has to go.
IV.
QUESTIONS AND ANSWERS
QUESTION: The Helsinki Act forbids any acts of economic or other
coercion against a country. However, President Clinton is now in
violation of this Act. He is using what are called negative earmarks.
The United States does not give aid to Serbian victims. Right now,
there are a hundred and fifty heart patients without medication. There
are approximately one hundred thousand diabetes patients without
medication or dialysis. Twenty-five babies are lost a month from the
lack of antibiotics. Also, a great many people die from dysentery and
typhoid because the United States does not give them the chemicals to
purify their water as part of the sanctions.
So the question becomes how can we respect the tribunals when
these kinds of violations are allowed to happen in the name of democracy? What is being done to the Serbian people is really creating medical genocide. Will there be a war crimes tribunal against medical
genocide in the future?
MR. NEWMAN: First, the Helsinki Act is not law. Since it is not
law, nations feel very free, especially in war-time or in time of armed
conflict to say, "Well, this is not the time to worry about these violations." As we demonstrated, nations are beginning to be concerned
about real law. That is why it is important for them to decide what is
the law and what is not. Sometimes real laws are also violated. However, we are not going to get very far by saying, for example, "What
about the Universal Declaration of Human Rights?" because it is not
part of the law.
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However, the Charter is something else. In this world, some do
not respect the law that is stated by the Security Council in Article. 2,
Section 3: "All members shall settle their international disputes by
peaceful means in such a manner that international peace and security
and justice are not endangered."5 2 Nevertheless, today, no one has
mentioned this article which states that no one can do dirty things.
It is well known that justice means what people know the law
means. This is the difference between the Declaration of Human
Rights, which is very nice on one hand, and the treaties that are ratified, on the other hand. If someone violates treaties and this hurts
people, then justice is not being discussed. There are lots of things to
criticize about President Clinton, especially when we are dealing with
morality and other niceties. The White House may not be observing all
the rules mentioned previously. Since this is a big issue, the community will not win these battles if the issues are continuously ignored.
QUESTION: It has been said that the United States was very selective in its targeting on Iraq. However, the United States knocked out
Iraq's water and sewer systems, and killed a hundred thousand civilians, thus violating the Geneva Conventions. As a Serbian, I take great
exception to the Roman Catholic institution gathering evidence on war
crimes. IfI suggestedfor a moment here that the Serbians at the Belgrade University collect data, you would think that I was insane. I bet
that there is not one Serbian who collected data at the DePaul University.
MR. CASSEL: How much money would you want to put on that
bet?
MR. MOUNTS: I would like to respond to the comment about
possible war crimes violations by Americans in Iraq. First, although the
United States has not come 100 percent of the way, it has come a long
way. This has been proven every day by the U.S. military's attempts to
comply with the Law of War to the best of its ability. Smart weaponry
has allowed the United States to chose targets very selectively.
There was an example in the ABA Journal agonizing whether the
United States should go ahead and hit a Scud missile launcher on the
highway at night, since we cannot distinguish it from a civilian vehicle
or truck which also uses the highway.53 The soldiers had to struggle
with those things. Based on such circumstances, the soldiers made the
best decisions they could. There are many more examples where we
52.
U.N. CHARTER Art. 2 § 3.
53.
Keeva, supra note 7, at 52.
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had legitimate military targets. There are going to be civilian deaths in
war. There is going to be collateral damage. The church in Saltzburg
was still a legitimate military target. The destroyed bunker that was so
widely publicized in Baghdad turned out to be full of civilians. The
intelligence that we had indicated that it was a command post-it was
surrounded by barbed wire, it was covered by camouflage, and it
looked to all intents and purposes like a military target.
MR. CASSEL: There was an effort made with respect to the military targets in the Gulf War to try to minimize collateral damage and
incidental injury to civilians. On the other hand, I agree with the questioner that the result of a fundamental military strategy by the United
States in that war, namely the deliberate targeting of the electrical system, the water system, and the agricultural system, has been documented by the Harvard Medical School and others to have led to casualties
that have to be measured in the tens of thousands. Most of these casualties involve children, and mostly took place after the war was over,
when CNN was no longer there to broadcast to all of us the cost of our
action. It seems that a hard look needs to be taken at whether that
military targeting during the war violated Protocol I.
With respect to the DePaul Institute doing the work for the United
Nations, a lot of time does not need to be spent on the fact that DePaul
University is a Catholic university. That had nothing to do with the
work that was done. The people who worked on it were Muslim, Jewish, Catholic, Protestant, and Serb, among others.
If there is a concern about whether the work was impartial, one
needs to look at statements that were made and reports that were issued
based on the work. These reports were based on the investigations that
were conducted on behalf of the United Nations and the reports came
from every source that came into the Institute. All of those reports
were placed into the database, tabulated, and analyzed.
The report repeatedly indicates that violations were committed by
all sides: Serbs, Croats, and Bosnians. It also repeatedly indicates that
the great majority of the violations that were reported were allegedly
on the part of the Serbs. Also, when the report characterizes its findings, it makes an effort to emphasize that, from the point of view of
human rights and humanitarian law, the issue is not about the ethnic
coloration of the victim or the person who committed the act. The fact
remains that if these acts were committed by one human being against
another, whatever the ethnicity of the person may have been, the act
was wrong. There is an ethnic conflict in the area. There are bitter and
passionate disagreements on both sides. These are not what the Com-
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PANEL II: WAR CRIMES
mission of Experts and the Human Rights Institute are about. Everyone
ought to consistently oppose these actions by whomever they might
have been committed.
QUESTION: The Serbians had no funding for collecting evidence
about the crimes committed against them. However, DePaul was given
a quarter of a million dollars, and the Tribunal was given, I think,
$950,000. So it appears that everyone was funding the Croatian and
Muslim sides, but that the Serbians had no funding.
MR. CASSEL: DePaul is not Bosnian and is not Croatian; the University was not in any way going into this saying, "We are only going
to investigate violations committed by or against one side or the other."
The mission of the U.N. Commission which contracted with DePaul to
do the computerized database was to investigate violations of international humanitarian law by whomever might have committed them.
QUESTION: Then why has DePaul not admitted in any of the public data that there were rapes of 800 Serbian women. Why is it so
difficult to tell the world and the press that DePaul has 800 names of
rape victims, and that, by the way, they are Serbian? Why are they
omitted?
MR. CASSEL: They are not. I am sure that is true. First, the Commission did not name anybody. Second, the data that is in the
Commission's report from the DePaul database is not limited to the
data received from the United Nations. It also includes all the other
data made available to the Commission, including data based on a team
of people who went over and interviewed some of the victims directly.
QUESTION: Some of the speakers speak of the Serbs, Croats, and
Bosnians. Serbs and Croats were also Bosnians. You are talking about
the Muslims, and I think in this discussion, it is misleading to use the
term Bosnians. What is disturbing about the War Crimes Tribunal is
the lack of standards, or the ad hoc nature of standards, in bringing
these people to trial. We speak of genocide, but what is the standardof
genocide?
Two articles in the New York Times reported a tunnel incident
that most people do not even know about. Three thousand Serbian
people were taken from their villages and stuffed into a tunnel for the
better part of a week. Out of the 3,000, 1,500 suffocated. The other
1500 were never seen again. Does anyone further investigate this genocide?
Again, in the New York Times, in the Croatianpart of the war, 25
people were taken from their homes, killed, and burned. When this first
came out, in the latter part of 1991, this massacre of people was
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blamed on the Serbs. Finally when the bodies were found, it was found
that the Serbian's had been massacred by the Croatians.Yet the Serbs
were sanctioned at that time even when they too were the victims.
Thus, what becomes of genocide? At what point do the killings meet
the definition of genocide or a war crime so that it may be brought
before the Tribunal?
MR. MOUNTS: The Draft Statute, in Article 4, defines genocide:
"Genocide means any of the following acts committed with intent to
destroy, in whole or in part, a national, ethnic, racial, or religious
group, as such." Those acts include "killing members of the group,
causing serious bodily or mental harm to members of the group, deliberately inflicting on the group conditions of life calculated to bring
about its physical destruction in whole or in part," and a number of
other similar types of acts. As mentioned previously, the problem of
defining what the elements of the offense are still exists.
MR. CASSEL: The definition in the Statute is the same definition
that is in the 1948 Convention on Genocide. This has been published
as international law for over 40 years.
MR. BLEICH: Additionally, because the Nuremberg Tribunal was
an ad hoc tribunal and not a permanent system, there has not been a
sufficient evolution of those standards. But at the same time, they are
standards.
QUESTION: We have heard a lot about the U.N. Tribunal being set
up. Is there any educated guess as to whether they might actually be in
session within a year or two?
MR. BLEICH: Taking an optimistic view, it appears that since
Judge Goldstone is an inspired judge and everyone is very anxious to
see this move forward, there should be indictments issued within the
next year. It is not certain whether the Tribunal can fulfill its potential
of prosecuting on a broad scale the crimes that have been committed
there.
QUESTION: Is it considered a war crime to violate U.N. rules by
exporting goods under a U.N. embargo to places in those countries? Is
that a war crime itself, or is that just a violation of national rules?
What kind of tribunal would address this?
MR. CASSEL: It is not a war crime. It would be a violation of the
sanctions imposed by the United Nations Security Council, which the
Tribunal would refer to the Security Council. The Council's response
would be a diplomatic response of some sort, but not a war crime prosecution.
QUESTION: The idea of a Tribunal is good because it has implications beyond this conflict. As mentioned previously, this is one of many
1995]
PANEL II: WAR CRIMES
conflicts. There will be more in the world. It is interesting to know that
there are people dedicated to making some kind of standard.How can
we as individuals here contribute to the things you are trying to accomplish? I think that is the best chance we have of getting .a standard
established and under control.
MR. CASSEL: There are a good number of human rights activists
and lawyers who are working in NGOs dealing with actual lawsuits. It
seems to me the key issue now is whether the prosecution is going to
pursue a theory of command responsibility and go after the people who
are really responsible. Or is it going to limit itself to going after a few
of the small fish? It seems that these are the main issues. Also, public
pressure on such issues is needed if it is going to happen.
QUESTION: Is there a legal issue whether this is a civil war or a
conflict among independent sovereign nations?
MR. CASSEL: There is such a legal issue. There are a lot of different opinions on the answer to that question. The opinion expressed in
the report of the Commission is that it began as a civil war. At some
point in time, but it is not clear when, it became an international war.
Bosnia-Herzegovina is a member of the United Nations as an independent nation. The Federal Republic of Yugoslavia, which consists of two
of the former provinces of Yugoslavia, is also an independent nation.
So it is a war between two nations. But that occurred at a point in time
prior to which there was an internal armed conflict according to the
view of the Commission. Other international law experts may read it
differently.
QUESTION: One of the things that has not been brought up is the
nonparticipationof the United States in the United Nations. The United
States has not ratified the convention and has not paid its dues over
the years. Now, from left field it wants a tribunalwithout a foundation.
MR. CASSEL: The United States's record with regard to participating in international human rights treaties and in the human rights activities of the United Nations and international law has been pretty weak
over the last 50 years. On the other hand, it is important to recognize
that the United States is beginning to get into the game. After waiting
only 40 years, the United States ratified the Genocide Convention in
1988. In 1990, the U.S. Senate consented to the ratification of the
Torture Convention, which was finally perfected just last month when
implementing legislation was adopted. In 1992, the United States ratified the International Covenant on Civil and Political Rights after waiting only 26 years. Last month, the United States ratified the Convention Against Race Discrimination. The Convention Against Discrimina-
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tion Against Women is currently scheduled for Senate hearings later
this year.
The United States has also been the key advocate of the International Criminal Tribunal for the former Yugoslavia. It is fair to say that
the U.N. Ambassador, Madeleine Albright, has been the point person
withirn the Administration and has been doing more than her superiors.
It is also fair to say that without the United States there would not be
an International Criminal Tribunal for the former Yugoslavia at all.
So while we have a long way to go, particularly in the last six or
seven years, we have begun to make a lot of progress. The United
States is beginning to recognize that it cannot just have a world in
which the only thing that counts is power. Such a world is not in our
self-interest because we do not have the power to control the world
according to our own interests. International law and international legal
institutions are becoming more and more the interests of the United
States.
QUESTION: A few months ago, someone in the State Department
who is connected with human rights stated that the Administration was
interested in three areas of big human rights violations: the former
Yugoslavia, Cambodia and Turkey, because of the genocide against the
Kurds. What happened to the other two? What about Turkey and Cambodia? Is the Administration still interested in those two?
MR. CASSEL: Although a commission or tribunal could be justified
in both Turkey and Cambodia as well as in many other places, neither
an investigative commission nor an international criminal tribunal has
been established in either of those places. In the case of Cambodia, the
principal efforts of the United Nations have been to set up a peacekeeping force, a human rights monitoring presence, and promote elections, which were in fact held, and try to bring together the warring
parties in some sort of peaceful government.
In the case of Turkey, the principal activity by the United States
has been in the form of bilateral pressure: (1) diplomatic suggestions
that there is concern about the violations against the Kurds; and (2) that
bilateral sanctions might be imposed. But that has been done with
considerable restraint because of the obvious security and military
significance of Turkey.